New India Assurance Co. Ltd. @APPELLANT@Hash Sushma, Sushila

The present appeals preferred under Section 173 of the Motor Vehicles Act, 1988 lay challenge to a common judgment and award dated 17.11.2017,

passed by learned Motor Accident Claims Tribunal, Merta, District Nagour, (hereinafter referred to as ‘the Tribunal’), whereby it has allowed

the claims filed by the claimants.

The facts in nutshell, necessary for the adjudication of the present appeals are that the claimant â€" Sushma as a pillion was going on a motorcycle

from Merta to Nagour, along with her husband Kamal Kishore, when a swift car bearing Registration No. RJ 35 CA 0181 being rashly and negligently

driven by the respondent No.1, coming on the wrong side hit the motorcycle from front side, as a result whereof Kamal Kishore and the claimant â€

Sushma got grievous injuries, causing death of Kamal Kishore. The respondent - claimant â€" Sushma has filed two claim petitions; one for the injuries

sustained by her, whereas the other claim being claim petition No.33/2017 was filed in relation to the death of her husband â€" Kamal Kishore. Her

sons, daughter and mother also joined her in the said claim petition as claimants.

The appellant â€" Insurance Company filed a written statement and contested the claims on various counts, including noninvolvement of the car in

question, which was insured with it. On the basis of pleadings of the parties, the Tribunal below had framed issue No.1, which related to the factum of

the accident, involvement of the swift car and negligence of its driver and resultant death of Kamal Kishore and grievous injuries to Sushma.

 The Tribunal decided issues No.1 and 3 in favour of the claimants and vide its judgment and award dated 17.11.2017 awarded a sum of

Rs.59,99,161/- to the claimants on account of death of said Kamal Kishore, while awarding a sum of Rs.22,415/to the claimant â€" respondent No.1,

for the injuries she had suffered on account of the accident.

Laying challenge to the judgment and award dated 17.11.2017, Mr. Anil Bachhawat, learned counsel for the appellant argued that it was a case of

false involvement of the vehicle and there was no evidence to prove that the swift car bearing registration No. RJ 35 CA 0181, the vehicle insured by

the appellant â€" Insurance Company was in any manner connected with the accident.

Learned counsel for the appellant contended that the accident took place at 07:40 pm on 24.08.2016, whereas FIR was lodged a day later, without

giving registration number of the offending vehicle. He pointed out that it was rather stated in the FIR that some ‘unknown vehicle’ had caused

the accident.

A perusal of the factual matrix of the case at hand reveals that the claimant â€" Sushma wife of the deceased, travelling on the motorcycle in

question, as a pillion rider too had suffered injuries during the accident. It is natural that a person having met with an accident and suffering injuries

may not immediately retrieve the registration number of the vehicle, perhaps for which reason the FIR did not contain the registration number of the

car, as no such information was given by the victim â€" Sushma. However in the FIR, the colour of the swift car viz. black had been specifically

mentioned as divulged by her.

Arguments of the learned counsel for the appellant have been that it is a case of wrong involvement of the vehicle because the registration number of

swift car was not given while lodging the FIR and that the version of the eye-witness cannot be believed, particularly when AW-2 himself has stated

that the offending car overtook his motorcycle and then hit the victim’s motorcycle from the front side and fled. In a bid to appreciate his

arguments, it will not be out of place to reproduce the statement of the AW-2, which I hereby do:-

^^13- p{kq lk{kh , MCY;w&2 us eq[; ijh{k.k esa dFku fd;k gS fd] fnukad 24-0816 dks “kke 7&8 cts og dqpsjk eksVj iEi Mky dj vk jgk Fkk] mlds

lkFk xtsUnz FkkA dqpsjk Vksy ds ikl igawps rks ihNs ls dkys jax dh dkj uacj vkj ts 35 lh , 0181 mudh eksVjlkbZfdy dks vkWojVsd djrs gq, fudyh rFkk

lkeus ls vk jgh ,d eksVjlkbZfdy ds VDdj ekj nh] dkj ?kwe dj okil vkbZ rks mUgksaus dkj okys dks :dok dj iwNk fd D;k ckr gks xbZ \ rks mUgksaus

dgk fd dqN ugha gqvkA fQj mUgksaus dgk fd rsjh dkj ls nq?kZVuk gqbZ gSA ?kk;yksa dks gkWLihVy igwapkuk gSA dkj okys dks uke iwNk rks

mlus viuk uke HkS: flag crk;k o ihfM+rksa ds ikl igawps] bruh nsj esa dkj okyk dkj ysdj Hkkx x;kA**

Analysing the version of the said witness AW-2, Mr. Bachhawat contended that the testimony of AW-2 is very unnatural and the same cannot be

believed. He argued with bewilderment that a car having hit a motorcycle and fled would hardly come back.

I have gone through the statement of the AW-2, in light of the argument advanced by learned counsel for the appellant and given my thoughtful

consideration over the matter.

It is noteworthy that an eye-witness AW â€" 2 appeared in the witness box and deposed that on the date of accident, while he was coming on the said

road, he saw the black swift car bearing registration No. RJ 35 CA 0181 hitting the motorcycle while it was over-taking other vehicle.

It is true that the statement as given by AW-2 in relation to fleeing of the car and returning back are too unnatural to be believed and raises a

suspicion. But behaviour of a person involved in such an accident is usually in-explicable. A bona fide person, despite having hit a motorcycle and

made his getaway may come back in anxiety to help or curiosity to see the victim. However, once he finds that a mob has gathered and having

identified him as the culprit, started cursing him for the accident, he may find himself on the horns of dilemma. In such a situation, the offender might

run away, leaving the victim at the mercy of the persons gathered around, essentially in a bid to avoid public outrage.

This Court also finds no merit in the argument of the learned counsel for the appellant that the registration number of the car was not given while

lodging the FIR. The Courts cannot be oblivious of the agony and mental state of the claimants and other family members, who have lost their

beloved. Wife of the deceased had given the relevant information that “a black swift car†had hit them from front side; which fact has been

undeniably mentioned in the FIR.

Tiding over the grief, if the family member, after some days enquire and come to know about the registration number of the car or even the same is

unearthed during investigation by the investing agencies or by the police, such vehicle/driver/owner can be certainly subsequently roped in.

“Non mentioning†of registration number or identity of the driver etc. simplicitor cannot be and should not be confused with “non-

involvement†of a particular vehicle. In considered opinion of this Court, not mentioning of the registration number of the offending vehicle is not fatal

to the case.

If the arguments of learned counsel for the appellant is considered in the facts of the present case, coupled with other evidence particularly that during

the investigation the police as well as Insurance Company found the car to be damaged and that the owner of the vehicle â€" respondent No.3,

pursuant to notice under Section 133 of the Motor Vehicles Act had stated that on the fateful day i.e. 24.08.2016, the respondent No.2 â€" Bhairo

Singh was driving the vehicle, and that the owner of the vehicle had further admitted that respondent No.2 herein had caused the accident; there

remains no room for ambiguity that the accident in question was a result of rash and negligent driving of Bhairo Singh - respondent No.2, who has

driving the black-swift car, under the instruction and control of respondent No.3 â€" owner of the vehicle.

In view of the aforesaid discussion, this Court does not find any substance in the arguments advanced by Mr. Bachhawat regarding non-involvement

of the insured vehicle.

As far as quantum of compensation is concerned, no argument has been advanced as the same is based on the returned income of the deceased

Kamal Kishore, after deducting applicable income tax.

There is no substance in the appeals and the same are therefore dismissed.

Needless to observe that the dismissal of the present appeals shall not affect claimants’ right of seeking enhancement, as this Court has only

pronounced upon the only ground raised by the appellant â€" Insurance Company, in relation to the false implication of the insured vehicle.